In State v. Sandoval, the WA Court of Appeals held that an access device (credit card) need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner.

BACKGROUND FACTS

Ms. Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it. After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

Eventually, the police found Sandoval and her husband in the stolen vehicle at the address
listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and
searched her incident to that arrest. In Sandoval’s purse, the police found a credit card with somebody else’s name on it, Sandoval’s sister’s birth certificate, and a pipe with methamphetamine residue.

The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card’s owner cancelled the card.

At trial, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

The court defined an access device as, “any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value. In the same instruction, the court stated, “The phrase ‘can be used’ refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time.

The jury convicted Sandoval on all charges except identity theft in the second degree. The
State dismissed that charge.

Sandoval appealed on the argument that an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 9A.56.010(1) defines “access device” as any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

Here, the Court of Appeals upheld the trial court’s definition containing the phrase “can be
used,” a phrase which is not statutorily defined. It reasoned that under State v. Schloredt, it was irrelevant whether a victim cancelled his or her account prior to a defendant’s arrest in determining whether stolen credit cards were “access devices” under the statute. Similar to the facts in Schloredt, it was irrelevant that the credit cards Ms. Sandoval possessed were cancelled by its lawful owner.

Also, the Court of Appeals rejected Sandoval’s argument that she received ineffective assistance of counsel when her attorney failed to request a jury instruction for unwitting possession as an affirmative defense for her possession of a controlled substance charge.

The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Furthermore, in an ineffective assistance of counsel claim, prejudice exists if there is a reasonable probability that, except for counsel’s errors, the results of the proceedings would have differed.

Here, the Court reasoned that Sandoval testified that she obtained the credit card and methamphetamine pipe at the same time, and both items were found on Sandoval in the same location. Therefore, if the jury found that the State carried its burden in showing beyond a reasonable doubt that Sandoval knowingly possessed the credit card, then it is doubtful that Sandoval could have carried her burden to show, by a preponderance of the evidence, that she unwittingly possessed the methamphetamine pipe.

“Thus, we conclude that it was not reasonably probable that the jury would have found Sandoval not guilty of possession of a controlled substance if they had been instructed on the unwitting possession defense.”

Therefore, the Court reasoned that Sandoval was not prejudiced by her counsel’s failure to request the instruction. Because Sandoval has not met her burden to prove prejudice, her ineffective assistance of counsel claim fails.

Please contact my office if you, a friend or family member are charged with a crime. Hiring a competent and effective defense attorney is the first and best step toward getting justice.

In State v. Phillips, the WA Court of Appeals held that the trial court did not violate an African-American defendant’s right to an impartial jury by dismissing a prospective juror despite the juror’s feelings that African American men are more prone to violence.

BACKGROUND FACTS

On July 1, 2016, Mr. Phillips came home late after his wife Ms. Philips was in bed asleep with their infant daughter. Ms. Philips told Mr. Phillips to leave her alone. Their daughter called 911 and reported that Mr. Phillips was hitting Ms. Philips. When Mr. Phillips saw his daughter was calling the police, he knocked the phone from her hands.

King County Sheriff’s deputies responded to the 911 call and found the house in chaos. Mr. Phillips was arrested and booked into jail. From jail, Mr. Phillips repeatedly called Mrs. Philips demanding that she get him out and expressing his anger at the police having been called. Mr. Phillips was charged with Assault in the Second DegreeDomestic Violence (DV) and Tampering With a Witness.

Jury Selection

During jury selection, the trial judge asked if any of the jurors had personal experience
with domestic violence. Juror 10 was among the members who raised their hand. When asked to elaborate, he explained that his sister and his wife’s sister-in-law were both involved in abusive relationships with intimate partners.

Juror #10 also revealed an experience in college after an intramural basketball game when an African American player on the opposing team assaulted him. Juror 10 explained, “nothing came of it, but it left an emotional imprint.” He further elaborated,

“And this is an emotional truth. I don’t live this way; I don’t believe this; but I’m also aware that feelings happen in reality that black men are more prone to violence . . . It was also notable that afterwards when, you know, the gym supervisor was called and there was just a huddle on the spot, and then, of course there was denial and, you know, dismissiveness of it. And that’s another narrative; that those who are violent try to get out of it; so those are two personal emotions imprints that are there, as well.”

From these comments, both the State Prosecutor and Mr. Philips’ defense attorney asked numerous questions to Juror #10. Ultimately, neither the State nor defense counsel exercised a peremptory challenge or moved to strike Juror #10 for cause. Later, Juror #10 served on the jury.

Ultimately, the jury found Phillips guilty of second degree assault and found the State prove aggravating circumstances. The jury was unable to reach a verdict on the witness tampering charge, and it was dismissed. Mr. Philips was sentenced to 120 months.

He appealed. One of the issues was whether Juror #10 should have been struck from serving on the jury panel.

Furthermore, in order to ensure this constitutional right, the trial court will excuse a juror for cause if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of prejudice.

Also, at trial, either party has a statutory right to challenge a prospective juror for cause. “Actual bias is a ground for challenging a juror for cause,” said the Court of Appeals. “Actual bias occurs when there is the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.”

Furthermore, Under State v. Irby, RCW 2.36.110 and CrR 6.4 it is the judge’s duty to excuse potential jurors from jury service if they have manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect. These court precedents, statutes and court rules give a trial judge an independent obligation to excuse a juror, regardless of inaction by counsel or the defendant.

However, the Court of Appeals ultimately reasoned that the present case was distinguishable from Irby.

Also, the Court of Appeals reasoned that defense counsel was alert to the possibility of biased jurors.

“Defense counsel actively questioned Juror #10, including questioning whether, despite juror 10’s concerns, the juror would follow the court’s instructions and base his decision on the evidence presented,” reasoned the court of Appeals. “As a result, defense counsel did not challenge Juror #10. This suggests that defense counsel observed something during voir dire that led counsel to believe Juror #10 could be fair.”

Furthermore, the Court of Appeals said it was also significant that Phillips used his peremptory challenges to strike several jurors, but had one peremptory challenge remaining when he accepted the jury, including Juror #10. “Again, this suggests that defense counsel either wanted juror 10 on the jury, or did not want one or both the next potential jurors on the panel,” said the Court of Appeals.

Consequently, the Court of Appeals held that the trial court did not abuse its discretion in failing to excuse Juror #10 for cause and upheld Mr. Philips’ conviction.

My opinion? Bad decision.

I’ve conducted nearly 40 jury trials, which is more experience than most criminal defense attorneys have. In my experience, potential jurors have a tendency to mitigate, justify, deny, back-pedal and just plain cover up any biases they have. It’s human nature. Therefore, if any juror states they have a biases which prejudice a criminal defendant, then that juror should be excused. Period.

Unfortunately, it appears Defense Counsel also failed to strike Juror #10. That is unfortunate as well. As the judge said, however, this may have been strategic. Perhaps Defense Counsel wanted to avoid impaneling a potential juror who was actually more biased than Juror #10. We don’t know.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an experienced and proactive defense attorney is the first step toward gaining justice.

The State charged Lundstrom with two counts of unlawful possession of a controlled
substance. At a pretrial hearing, Lundstrom appeared in restraints. Before the proceeding ended, defense counsel took exception to Mr. Lundstrom appearing in court with 5-point restraint shackles.

The trial court did not respond to defense counsel’s statement or concerns.

Lundstrom subsequently filed a motion objecting to the restraints and requesting removal of the shackles. The motion included a certified statement from defense counsel, which stated that he had made a public disclosure request with the Clallam County Sheriff’s Office (CCSO) for their policies and discovered that CCSO policy 15.106.1 required all inmates to be brought to court in full restraints (waist chain, cuffs, and leg irons) for their first appearance. There is no record showing whether Lundstrom noted the motion for hearing before the trial court, whether the trial court held a hearing on the motion, or whether the trial court ruled on the motion. Ultimately, however, Lundstrom pleaded guilty to two counts of unlawful possession of a controlled substance.

On appeal, Lundstrom argued that his pretrial restraint violated his due process rights because the trial court failed to make an individualized determination on the necessity of the restraints.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals agreed with Mr. Lundstrom.

It reasoned that under the WA Constitution, the accused shall have the right to appear and defend in person. That right includes the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

“Restraints are disfavored because they may interfere with important constitutional rights, including the presumption of innocence, privilege of testifying in one’s own behalf, and right to consult with counsel during trial.”

“But a defendant’s right to be in court free from restraints is not limitless,” said the Court of Appeals. “The right may yield to courtroom safety, security, and decorum. A defendant may be restrained if necessary to prevent injury, disorderly conduct, or escape.”

Furthermore, the trial court abused its discretion and committed constitutional error when it failed to address the issue of Lundstrom’s pretrial restraint. By failing to do so and allowing Lundstrom to be restrained, the trial court failed to exercise its discretion and effectively deferred the decision to the jail’s policy. As a result, the trial court abused its discretion and committed constitutional error by failing to make an individualized inquiry into the necessity for pretrial restraints when Lundstrom took exception to the use of pretrial restraints. Therefore, Lundstrom’s due process rights were violated by his pretrial restraints.

Interestingly, Lundstrom was not trying to overturn his conviction or seek any other remedy due to the violation of his due process rights. He only wanted the Court of Appeals to address his claim as a matter of continuing and substantial public interest.

“Generally, we do not consider claims that are moot or present only abstract questions,” said the Court of Appeals. However, we have the discretion to decide an issue if the question is one of continuing and substantial public interest.”

My opinion? Good decision. It’s harsh to see defendants in handcuffs and chains. Indeed, it’s unconstitutional. And for the most part, shackling defendants at court hearings is unnecessary unless there’s reason to believe the defendant may escape or harm others.

Please contact my office if you, a friend or family member face criminal charges.

One week before Carter’s April 2016 trial, the Prosecution anticipated bringing the testimony of J.C., the victim for Counts 13 and 14. J.C., who was by then an adult living in Minnesota, was seven months pregnant with a due date in June. The government explained that J.C. had been hospitalized for complications with her pregnancy and that her doctor had instructed her not to travel from Minnesota to California.

Accordingly, the government sought to have her testify during trial from Minnesota via live two-way video conference.

Carter opposed on Confrontation Clause grounds. Nevertheless, the federal district court granted the government’s application to use two-way video, and the case proceeded to trial. On the second day of trial, Carter again objected to the two-way video procedure. Again, the federal district court denied Carter’s motion.

J.C. testified by two-way video at trial. She stated that she met Carter in 2013, when she was 16 years old. She was living in Minnesota at the time, and Carter bought her a bus ticket to Los Angeles under an alias because she was underage. When she arrived in Los Angeles, Carter picked her up and took her to a motel room. There, he photographed her in lingerie and used the photographs in an advertisement on Backpage, a website used to advertise sexual services. She then worked as a prostitute for Carter for approximately two weeks. She testified that Carter kept all of her earnings, dictated how much she should charge and what she should wear, and threatened to beat her if she did not comply.

Carter was ultimately convicted on all fourteen counts. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit Court of Appeals held that a defendant’s right to physically confront an adverse witness cannot be compromised by permitting the witness to testify by video unless use of the remote video procedure is necessary and the reliability of the testimony is otherwise assured.

The Court reasoned that the victim’s inability to travel to the trial location was due to a temporary pregnancy-related condition. Therefore, a continuance of the trial was a more appropriate solution. Furthermore, testimony from a remote location requires proof that the witness is not being coached or influenced during testimony, that the witness is not improperly referring to documents, that the witness has an adequate view of the courtroom, and that the jury has an adequate view of the witness.

Here, none of those proof conditions were met. Because alternatives were available for obtaining a victim-witness’s testimony that would have preserved the defendant’s right to physical confrontation, the use of a remote video was not necessary in this case, and violated the defendant’s Sixth Amendment right to confront the witnesses against him.

Consequently, the Court vacated the defendant’s convictions on one count of violating 18 U.S.C. § 1591 (Sex Trafficking of a Minor) and remanded for re-sentencing on remaining counts as to which the panel affirmed the defendant’s convictions in a concurrently-filed memorandum disposition.

My opinion? Despite Mr. Carter’s terrible charges, allegations and fact pattern, the Ninth Circuit made the correct decision on his behalf. The Sixth Amendment’s right to face-to-face confrontation ensures the integrity of the fact-finding process and forms the core of the values furthered by the Confrontation Clause.

Although exceptions to the Confrontation Clause rightfully exist – for example, if the testifying victim is a child who would suffer significant emotional trauma from being in the same room as their offender – these exceptions are narrow. Remote two-way video cameras can be used and substituted for face-to face contact upon a case-specific finding that (1) the denial of physical confrontation is necessary to further an important public policy, and (2) the reliability of the testimony is otherwise assured.

Please contact my office if you, a friend or family member face criminal charges. It’s imperative to hire experienced and effective defense counsel as soon as possible.

In United States v. Kecheczian, the Ninth Circuit Court of Appeals decided a trial court mistakenly allowed a juror to decide an aggravated identity theft and possession of unauthorized access devices case, when the juror admitted during jury selection that she had her social security number previously stolen and she was unable to explicitly state that she could put her personal biases aside.

BACKGROUND FACTS

After receiving a tip that Mr. Kechedzian was linked to a fugitive operating a large credit card fraud ring, federal agents conducted a trash pull from Kechedzian’s residence. In his trash, they found two counterfeit credit cards and, based on this, the agents obtained a search warrant. The resulting search of Kechedzian’s residence and cars uncovered two USB drives containing 1,451 stolen credit card numbers in text files, a Bluetooth-enabled “skimming device” commonly used to steal credit card information from gas station pumps, and several cards with stolen data re-encoded on the magnetic strips. Bank records revealed that many of the stolen card numbers had been used fraudulently at gas stations and other retail establishments across the United States.

“Does anyone feel, just based on the charges in this case, based on what this case is about, that they could not be fair and impartial to both sides? Does anyone feel that way at this point in time?”

Juror # 3 raised her hand. From there, she informed the court she was a past victim of identity fraud. Furthermore, she did not know whether she could put aside her biases. Later, at sidebar, defense counsel sought to have Juror # 3 excused for cause. However, the judge denied the motion.

“I think at the end of the day she confirmed or committed to the principles of the presumption of innocence and burden of proof,” said the judge. “I would deny the motion.” Consequently, Juror # 3 sat on Kechedzian’s jury.

The jury ultimately returned a guilty verdict, and Kechedzian was sentenced to 65 months in prison followed by three years of supervised release. The district court also ordered $114,134.76 in restitution. Kechedzian timely appealed.

COURT’S ANALYSIS & DECISION

The Court of Appeals began by saying the Sixth Amendment guarantees criminal defendants a verdict by an impartial jury, and the bias or prejudice of even a single juror is enough to violate that guarantee. Accordingly, the presence of a biased juror cannot be harmless. The error requires a new trial without a showing of actual prejudice. And any doubts regarding bias must be resolved against the juror. One important mechanism for ensuring impartiality is voir dire, which enables the parties to probe potential jurors for prejudice. After voir dire, counsel may challenge a prospective juror for cause, and a partial or biased juror should be removed if there is a showing of either implied or actual bias.

“Here, Kechedzian alleges bias under both theories,” said the Court.

Actual Bias Analysis

It explained that actual bias is the more common ground for excusing jurors for cause. Actual bias is the existence of a state of mind that leads to an inference that the person will not act with entire impartiality. Actual bias involves an inability to act impartially or a refusal to weigh the evidence properly It can be revealed through a juror’s express answers during voir dire, but it can also be revealed by circumstantial evidence during questioning.

The Court said that in contrast, implied bias is presumed only in extraordinary cases. “In analyzing implied bias, we look to whether an average person in the position of the juror in controversy would be prejudiced.”

Implied Bias Analysis

This Court described “implied bias” as applying to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances. Furthermore, the implied bias inquiry is an objective one. Even if a juror states or believes that she can be impartial, the court may find implied bias based on the circumstances.

The Court noted that here, although Juror # 3 was previously a victim of identity theft, this is not the type of “extreme” situation where we find implied bias. “Thus, we focus our analysis on the actual bias inquiry,” said the Court.

The Court reasoned that Juror #3 was ultimately asked if she could set aside her feelings, and act impartially and fairly to both sides of the case. She responded: “I believe so, yes.” The Court said that statement—“I believe so, yes”—appears somewhat equivocal. However, none of Juror #3’s equivocal statements could be understood as affirmative statements of impartiality. The Court reasoned that here, Juror #3 explicitly noted that she was unsure if she could put her personal biases aside.

“A juror can understand the presumption of innocence and burden of proof, yet still let personal prejudice infect her ability to be impartial.”

“When a juror is unable to state that she will serve fairly and impartially despite being asked repeatedly for such assurances, we can have no confidence that the juror will lay aside her biases or her prejudicial personal experiences and render a fair and impartial verdict,” said the Court. “Because this is precisely what occurred here, the district court was obligated to excuse Juror #3 for cause under an actual bias theory.”

Accordingly, the Court of Appeals reversed and remanded for a new trial.

My opinion? Good decision. In my trial experience, potential jurors who have suffered as victims of crime tend to be pro-prosecution. A potential juror who does not know if they can be fair or impartial should be excused for cause. Period.

In State v. Burnam, the WA Court of Appeals held that the trial court correctly excluded evidence that the woman the defendant killed had four years earlier dated a man accused of murder and that she had hid the murder weapon.

Apparently, four years earlier, Ms. Sweet dated a man accused of murder and she had hid the murder weapon, which was a firearm. Sometime after the homicide, Ms. Sweet briefly gave the firearm away and then attempted to get it back. When law enforcement questioned her, she was evasive and misleading. She was charged and convicted of first degree rendering criminal assistance by means of concealing, altering, or destroying the gun.

Mr. Burnam claimed that this was character evidence and asked the court to analyze its admissibility under ER 404(b). Under this evidence rule, evidence of prior acts can be admissible for certain other reasons, including motive, opportunity, and intent

Mr. Burnam made a lengthy offer of proof in support of his motion. He argued that the evidence would help establish the reasonableness of his fear of serious harm or death during his struggle with Ms. Sweet. He repeatedly asserted the jury should know that Ms. Sweet was involved with a homicide or capable of being involved with a person who had committed a homicide.

Despite defense counsel’s offer of proof, the court nevertheless excluded all evidence of the homicide case that Ms. Sweet was involved in.

At trial, Mr. Burnam testified he responded in self-defense to Ms. Sweet. Despite his testimony, the jury found Mr. Burnam guilty of first degree murder and interfering with the reporting of domestic violence. Mr. Burnam appealed on arguments that the court should have admitted evidence that Ms. Sweet was involved in a murder from four years ago.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that both the United States Constitution and the Washington Constitution guarantee the right to present testimony in one’s defense. Furthermore, a defendant’s right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence. However, defendants can present only relevant evidence and have no constitutional right to present irrelevant evidence. If relevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial.

Admissibility of Self-Defense Evidence.

The Court further reasoned that in considering a claim of self-defense, the jury must take into account all of the facts and circumstances known to the defendant.

“Because the vital question is the reasonableness of the defendant’s apprehension of danger, the jury must stand as nearly as practicable in the shoes of the defendant, and from this point of view determine the character of the act,” said the Court. “Thus, such evidence is admissible to show the defendant’s reason for fear and the basis for acting in self-defense.”

Moreover, evidence of a victim’s violent actions may be admissible to show the defendant’s state of mind at the time of the crime and to indicate whether he had reason to fear bodily harm. Thus, a defendant may, in addition to the character evidence, show specific acts of the victim which are not too remote and of which the defendant had knowledge at the time of the crime with which he is charged. Evidence of specific acts may be admissible for the limited purpose of showing the defendant had a reasonable apprehension of danger.

Finally, the court reasoned that an offer of proof should (1) inform the trial court of the legal theory under which the offered evidence is admissible, (2) inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility, and (3) create an adequate record for appellate review.

The Court of Appelas concluded that Mr. Burnam’s offer of proof failed to inform the trial judge of the specific nature of the offered evidence.

“Mr. Burnam’s offer of proof was lengthy but repeatedly vague on the specific nature of the offered evidence.”

The Court further concluded that Ms. Sweet merely pleaded guilty to rendering criminal assistance by disposing of a firearm used previously in a homicide. Nevertheless, rendering criminal assistance is a nonviolent felony.

“The mere fact that Ms. Sweet dated a man accused of murder and hid the murder weapon does not strongly imply that Ms. Sweet was violent. The prejudicial effect of excluding this questionable evidence is minimal. We conclude the trial court did not violate Mr. Burnam’s constitutional right to present a defense when it excluded this evidence.”

Consequently, the Court of Appeals upheld the trial court’s decision to exclude evidence that Ms. Sweet was indirectly involved in a homicide from four years earlier.

Please contact my office if you, a friend or family member are involved in cases involving assault or self-defense. Generally speaking, evidence that the victim had prior bad acts and/or had violent tendencies is admissible. However, court must undergo a balancing test under the evidence rules to determine if the evidence being offered is relevant, probative and/or unfairly prejudicial. This case was fairly straightforward in determining that the dead victim’s prior conviction for a non-violent crime was irrelevant.

In State v. Solomon, the WA Court of Appeals held that the trial court properly dismissed a charge of attempted rape of a child for outrageous police misconduct, where an officer, posing as a fictional 14-year-old girl sent the defendant nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited the defendant to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the court of four days.

BACKGROUND FACTS

In this matter, a law enforcement officer anonymously published an advertisement on an online Craigslist classifieds platform reserved for those over the age of 18 and indicated that she was “a young female” seeking an individual interested in a casual sexual encounter. The defendant Mr. Solomon responded to the advertisement. Thereafter, the police officer assumed the guise of a fictional 14-year-old girl and sent Solomon nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited him to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the course of four days.

The trial court herein found that the actions of the law enforcement officer constituted outrageous misconduct in violation of Solomon’s right to due process and dismissed the charges against him. The State appealed.

ISSUE

Whether the trial court abused its discretion in dismissing the case due to outrageous conduct of the investigating law enforcement officer.

COURT’S ANALYSIS & CONCLUSIONS

As precedent, the Court of Appeals applied the State v. Lively “totality of the circumstances evaluation,” which identifies five factors to be considered by a trial court deciding issues of whether law enforcement engaged outrageous conduct: (1) whether the police conduct instigated a crime or merely infiltrated ongoing criminal activity, (2) whether the defendant’s reluctance to commit a crime was overcome by pleas of sympathy, promises of
excessive profits, or persistent solicitation, (3) whether the government controls the criminal activity or simply allows for the criminal activity to occur (4) whether the police motive was to prevent crime or protect the public, and (5) whether the government conduct itself amounted to criminal activity or conduct repugnant to a sense of justice.

Here, the Court of Appeals agreed with the trial court’s analysis that Solomon’s reluctance to commit the crime was manifested by his repeated—seven times—attempts to discontinue the conversation. Furthermore, the Court of Appeals agreed that the State had engaged in persistent solicitation of Solomon, given that the detective continued to solicit Mr. Solomon each of the seven times that he sought to withdraw and, in addition, sent the majority of the over 200 messages exchanged between the two parties.

Additionally, the Court of Appeals agreed with the trial court that the investigating law enforcement detective controlled the criminal conduct both by initiating the interaction between her and Solomon and by stringing him along over the course of the four days of exchanges.

“In this way, the court determined that the detective’s use of graphic and highly sexualized language amounted to a manipulation of Solomon that was repugnant to a sense of justice.”

“In ruling to dismiss the charges, the trial court did not adopt a view that no reasonable judge would take,” said the Court of Appeals. “Given the court’s finding that law enforcement had initiated and controlled the criminal activity, persistently solicited Solomon to commit the crimes so initiated, and acted in a manner (through the use of
language and otherwise) repugnant to the trial judge’s view of the community’s
sense of justice, the trial court’s determination was tenable.

“Accordingly, the trial court did not abuse its discretion by ordering that the charges against Solomon be dismissed. There was no error.”

With that, the Court of Appeals affirmed the dismissal of Mr. Solomon’s charges.

Please contact my office if you, a friend or loved one face criminal charges which are stemmed by questionably actions of law enforcement officers. It’s extremely important to hire competent defense counsel who willing to argue compelling motions to dismiss similar to defense counsel’s motion in this case.

In State v. Richmond, the WA Court of Appeals held that a defense expert witness’s proposed testimony regarding the effects of methamphetamine was properly barred at trial because the expert never met or examined the victim and increased aggression is only one possible effect of methamphetamine ingestion.

BACKGROUND FACTS

Dennis Higginbotham went to Joseph Richmond’s property with two other individuals, Veronica Dresp and Lonnie Zackuse. Ms. Dresp was Mr. Richmond’s estranged girlfriend. Ms. Dresp had asked Mr. Higginbotham and Ms. Zackuse to accompany her to Mr. Richmond’s property so that she could remove some of her belongings.

A verbal argument ensued between Mr. Richmond and Mr. Higginbotham. After the verbal argument, Mr. Richmond went into his house. His return to the house was a relief. It appeared the hostility had come to an end.

Unfortunately, this turned out not to be true. Instead, Mr. Richmond ran out of his house, armed with a two-by-four piece of lumber that was nearly four feet in length. Mr. Richmond and Mr. Higginbotham then started exchanging more words. Mr. Richmond warned Mr. Higginbotham not to come any closer to him. When Mr. Higginbotham took a step forward, Mr. Richmond struck Mr. Higginbotham with the two-by-four. According to Ms. Dresp and Ms. Zackuse, Mr. Richmond held the two-by-four like a baseball bat and swung it at Mr. Higginbotham’s head. After he was hit, Mr. Higginbotham spun around and fell face first on the ground.

When emergency personnel arrived at the scene, it was determined Mr. Higginbotham had suffered severe head trauma. He was unconscious and eventually transported to
Harborview Medical Center in Seattle. He died shortly thereafter.

Mr. Richmond lodged a self-defense theory against the State’s murder charges. In support of this theory, Mr. Richmond sought to introduce testimony from several experts. One of the experts was David Predmore. Mr. Predmore was offered to testify about the general effects of methamphetamine consumption on human behavior. According to the defense, this testimony was relevant because high levels of methamphetamine had been found in Mr. Higginbotham’s system at the time of his death.

Although Mr. Richmond was not aware of Mr. Higginbotham’s methamphetamine consumption at the time of the assault, the defense theorized that Mr. Predmore’s testimony was relevant to corroborate Mr. Richmond’s claim that Mr. Higginbotham was behaving aggressively the night of the attack. However, the trial court excluded Mr. Predmore’s testimony as speculative and irrelevant. The jury convicted Mr. Richmond of second degree murder. He appealed.

ISSUE

On appeal, the issue was whether the trial court violated Mr. Richmond’s constitutional right to present a defense by excluding his expert’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

“Mr. Richmond argues the trial court violated his constitutional right to present a
defense by excluding expert testimony,” said the Court of Appeals. “We disagree.”

The Court of Appeals reasoned that Evidence Rule 702 governs the admissibility of expert testimony. “Under this rule, a witness may provide expert opinion testimony to the jury if (1) the witness is qualified as an expert, and (2) the witness’s testimony would help the trier of fact,” said the Court of Appeals.

“Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury. A proposed expert’s testimony is not helpful or relevant if it is based on speculation.”

Furthermore, the Court of Appeals reasoned that the trial court properly excluded Mr. Predmore’s proposed testimony regarding the effects of methamphetamine because it was not shown to be potentially helpful to the jury. “Mr. Predmore had never met or examined Mr. Higginbotham. He had no basis to assess how Mr. Higginbotham’s body may have processed methamphetamine,” said the Court of Appeals. It further reasoned that according to Mr. Predmore’s proposed testimony, methamphetamine can have a wide range of effects. Increased aggression is only one possibility. “It is therefore nothing but speculation to connect Mr. Higginbotham’s methamphetamine use with Mr. Richmond’s claim of victim aggression,” said the Court of Appeals. “The evidence was properly excluded, consistent with long standing case law.”

With that, the Court of Appeals upheld the conviction.

Please contact my office if you, a friend or family member are charged with a crime after responding in self-defense. Hiring competent and experienced counsel is the first step toward receiving a just resolution.

In State v. Horn, the WA Court of Appeals held that the trial court’s refusal to admit evidence of the defendant’s and the victim’s engagement and trip taken after the date of a domestic violence offense did not violate the defendant’s Sixth Amendment rights.

BACKGROUND FACTS

Horn and Ms. Oubre became romantically involved while Oubre was estranged from another man with whom she had had a relationship. Horn and Oubre began openly dating in January 2015.

In January 2015, Horn and Oubre were at Oubre’s residence drinking alcoholic beverages. While Oubre was using her cellphone, Horn grew angry and accused her of texting the man with whom she had been involved. According to Oubre, she had never seen him have “an episode like this before.” Horn grabbed Oubre’s night shirt and ripped it open, hitting her on the chest in the process.

Scared that the downstairs neighbor would hear the scuffle, Oubre and Horn went to Horn’s home. Once they arrived and got out of the car, Oubre told Horn that she was going to leave, but Horn grabbed her. They began wrestling when Horn pushed her against a wall and down into a flower bed. He bit her multiple times. Oubre did not call the police.

On August 7, 2015, Horn and Oubre were together at her home. Oubre was on her cell phone playing a game. Horn grew aggressive, believing that Oubre was texting an ex-boyfriend. A violent exchange occurred between Horn and Oubre. Horn straddled Oubre on the bed, pointed a gun at himself and Oubre, and gave numerous threats against her life.

Later, Oubre went to the hospital. She spoke with the police while at the hospital, and Horn was then arrested. Among other offenses, Horn was charged with domestic violence felony harassment based on the August incident. Horn posted bail on August 20, 2015.

Oubre and Horn got engaged on September 5 and took a trip together.

Horn was later charged with violating a no-contact order, to which he pled guilty. As part of the events related to that charge, videotape evidence showed Horn naked while jumping on top of Oubre’s car.

Before trial on the felony harassment charge, the State sought to introduce evidence of
the January 2015 incident under ER 404(b) to show that Horn’s threat to kill Oubre in August 2015 placed her in reasonable fear that the threat would be carried out. One of the elements of felony harassment is that the victim be placed in reasonable fear that a threat will be carried out.

Before trial, both the State and defense counsel argued over whether the evidence of the January 2015 incident should be admitted. The defense objected and in the alternative argued that if the State was permitted to introduce this evidence, the defense should be able to introduce evidence of Oubre and Horn’s engagement and trip after August 2015. In the defense’s view, this evidence showed that Oubre did not have a reasonable fear that Horn would carry out his threat to kill her on August 7.

The State opposed the admission of evidence of their engagement and trip because “it triggers a bunch of things,” including Horn’s later violation of a no-contact order where he was naked and jumping on top of Oubre’s vehicle. The State also did not believe the evidence was relevant to whether Oubre was fearful in August 2015.

The jury found Horn guilty of two counts of fourth degree assault, unlawful possession of
a firearm, and domestic violence felony harassment. Horn appealed. He argued that his Sixth Amendment right to present his defense was violated because the trial court did not admit evidence of Oubre and Horn’s engagement and trip taken after the August 2015 incident.

COURT’S ANALYSIS & CONCLUSIONS

“We review a Sixth Amendment right to present a defense claim under a three-step test,” said the Court of Appeals. First, the evidence that a defendant desires to introduce must be of at least minimal relevance. A defendant only has a right to present evidence that is relevant. Second, if relevant, the burden shifts to the State to show that the relevant evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial. Third, the State’s interest in excluding prejudicial evidence must also be balanced against the defendant’s need for the information sought, and relevant information can be withheld only if the State’s interest outweighs the defendant’s need.

The Court reasoned that to show a violation of the right to present a defense, the excluded evidence, that of Horn and Oubre’s engagement and trip, must first be of at least minimal relevance. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The threshold to admit relevant evidence is very low.

Impeachment evidence is relevant if: (1) it tends to cast doubt on the credibility of the person being impeached and (2) the credibility of the person being impeached is a fact of consequence to the action.

The court reasoned that here, Oubre’s subsequent engagement and trip with Horn thus would be relevant, if at all, to impeach her testimony that she feared Horn at the time he threatened to kill her.

“With the frightening nature of the threats and violence against Oubre on August 7 and the passage of nearly a month until their engagement, Oubre’s change of heart casts little doubt on her testimony that on August 7, in the face of repeated violence and death threats, she feared for her life.”

The court said that for these reasons, especially in combination with the cycles of violence and reconciliation in domestic violence relationahips, the evidence of Oubre’s engagement to and trip with Horn was not relevant.

“The trial court’s exclusion of that evidence was neither manifestly unreasonable, based on untenable grounds, nor based on untenable reasons,” said the Court of Appeals. “Thus, under the abuse of discretion standard, the exclusion of this evidence did not deprive Horn of his right to present a defense.” Furthermore, because Horn does not meet the first requirement of the three-step test, his claim that the trial court deprived him of the right to present a defense fails.

With that, the Court of Appeals ruled that Horn’s right to present a defense was not violated. Therefore, his convictions were affirmed.

Please contact my office if you, a friend or family member face domestic violence charges.

In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.”

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.